Increasingly, online sports content is falling victim to pirates who arrange illegal transmissions of major sporting events. And therefore law makers have to take steps to ensure that rightsholders can protect their rights and make sure that online sports content remains safe from the pirates. So far no one has drawn up a comparative mapping of the different legal remedies available in case of piracy in such details… until now. The European Audiovisual Observatory, part of the Council of Europe in Strasbourg, has just released its latest Mapping report on national remedies against online piracy of sports content conducted at the request of the European Commission.
This unique comparative legal analysis, edited by the Observatory with the collaboration of international copyright expert Giovanni Maria Riccio assisted by Fabiola Iraci, kicks off by looking at the scope of protection of audiovisual sports content in the legislative frameworks of the 27 EU member states and the UK. What are the rights attached to audiovisual sports content? Who holds these rights? These are all relevant questions to understand who will be entitled to take legal action against online piracy of audiovisual sports content, on what legal basis and what kind of legal remedies will be available to them.
The authors kick off with an analysis of what copyright rules actually apply to sports content. While sports events as such are not protected by copyright, the audiovisual recording and broadcast of such events may be protected by copyright under certain conditions of creativity and originality. In all cases, they are protected by the related rights respectively granted to the producer in the first fixation of the film and to the broadcaster in the broadcast signal. On this basis, rightsholders can take legal actions against the infringement of their rights and benefit from the remedies set out in copyright legislation. The situation is more varied when it comes to the protection of sports event organisers. In some countries, they hold so-called domestic or “house” rights, on the basis of which the owner or tenant of a sports venue can take legal action against anyone recording the event on the premises without prior authorisation. Only eight countries covered by the report have introduced in their national law specific rights over audiovisual sports content allowing sports event organisers to take legal action against online piracy.
The core section of the report looks at the national remedies, enforcement rules and procedures available to rightsholders and licensees to act against online piracy of their content. Despite a mixed variety of national approaches one may identify certain trends. Looking at notice and action procedures, which can be used in case of illegal content available online, the authors found that these still show significant divergences across countries, as they have not been fully harmonised at EU level.
In general, the report highlights that all countries provide for both civil and criminal remedies for copyright infringements, although criminal cases are rather rare. At the civil level, most of the countries covered by the report provide for the possibility for judicial authorities to issue injunctions against infringers and online intermediaries whose services have been used in connection with online copyright infringement.
The authors then go on to look specifically at one such civil remedy, particularly used against online piracy, the blocking order. They note that, although there is no definition at EU level of blocking orders, the term is commonly and generally used to refer to such injunctions which oblige ISPs to put in place the necessary technical measures to block or disable access to a website or platform. Some national courts have started to allow a dynamic use of blocking orders, that is the extension of blocking orders to future URLs and not only to existing websites. These dynamic orders are recognised as more flexible in cases of repeated infringements, as is often the case when dealing with piracy of live sports content. Also, in some cases, live blocking orders have been granted, that is injunctions which allow the repeated blocking of a site every time an illegal live broadcast is in process. These remedies have been considered by the courts to be effective, as they can be executed in a timely manner and therefore hinder active live streams. In all cases, the report stresses that in all countries where blocking orders are issued by the courts, courts ensure that those orders respect the principle of proportionality based on the fundamental rights of users and services, such as data protection, freedom of expression or freedom to conduct business.
The authors then move on to look at administrative authorities that have been created or empowered at national level with specific competences in copyright infringement and/or in the issuing of administrative blocking orders. In addition, the report looks at the codes of conduct or Memorandums of Understanding adopted at national level in some countries, with some successful examples in blocking illegal football match transmissions on the Internet.
The report rounds off with five case studies of leading initiatives and best practices in the fight against sports piracy. Specific focus is placed on the scope and criteria for issuing dynamic and live blocking orders, the role of polices forces, administrative enforcement procedures and technological approaches to combating online piracy of sports content.
As with every Observatory mapping report, there follows an extensive wealth of information in the form of country-by-country analysis where each chapter gives a detailed overview of the legislative framework adopted in each country and also offers an overview of other studies on this subject.